Rescue New Jersey: Plaintiff In Case Against Governor Left Picking Up the Pieces Following Business Shutdown

Jennifer Jean Miller | (973) 532-2117

Plaintiff in Case Against Governor Left Picking Up the Pieces Following Business Shutdown Loss of Plaintiff’s Business Compounded by Spouse’s Recent Layoff

(Morris Plains, NJ) As Darlene Pallay continues to wait on the legal process of her Appellate Division case against Gov. Phil Murphy and pandemic shutdowns near their one-year anniversary, the former business owner of the CKO Kickboxing Franklin franchise remains in limbo while she tries to recover from the domino effect of the business shutdowns, with her husband also recently laid off from his job.

Pallay’s lawsuit against Murphy with her company JWC Fitness LLC, formerly based out of Sussex County, challenged the Governor’s improper execution of the Disaster Control Act in March 2020, when he invoked the Act in his Executive Orders and deemed some businesses, including Pallay’s, “non-essential.” Though Pallay’s attorneys Robert W. Ferguson, Esq. of the law firm of Stern, Kilcullen and Rufolo, LLC of Florham Park and Catherine M. Brown, Esq., of Denville - who filed the suit with the facilitation of the nonprofit advocacy group Rescue New Jersey - asked to have proceedings expedited based on Pallay’s plight, the Appellate Division denied their request.

In the meantime, Pallay continues to remain at the mercy of the Appellate Division schedule, with her side’s legal brief due on Feb. 18, the response for Murphy due March 22 and Pallay’s reply on April 1. Complicating the complete loss of her thriving, decade-old fitness business, Pallay’s family suffered a further setback with her spouse’s layoff, the family now having to add a steep monthly COBRA insurance premium to their already stretched budget.

Another wrinkle for the Pallays, she said, is that her three, school-aged children are on an inconsistent, in-person, school schedule due to the COVID-19 shutdowns in the schools, often switched to full virtual without notice, as she attempts to rebuild her livelihood.

In March 2020 when Pallay still had over 200 members who patronized her fitness franchise, Murphy began shutting down businesses with the first of his back-to-back emergency COVID-19 Executive Orders, resulting in the permanent closure of more than one-third of the state’s small businesses. Pallay described the impact of being unable to operate for months as a “complete domino effect.” “It resulted in a loss of income, members and staff,” Pallay said.

“We are still dealing with the financial fallout.” Pallay attempted to stay operational once she was permitted to reopen in June in a socially distant and outdoor capacity. However, after finally securing outdoor space, her class sizes were still limited and schedules weather dependent.

Around the same time the suit was filed on Pallay’s behalf in Sussex County Superior Court on Sept. 23 and she was permitted by the state to reopen at a severely reduced capacity in her facility, less than the state’s 25% due to the nature of her classes which require more space per student, she could barely make ends meet to afford her current and back commercial rent payments.

Pallay said she attempted to reopen in October but even before she could finish out the month, her landlord shut the water off in her facility. “I was trying to operate with handcuffs on,” Pallay said, seeing other expenses around the corner, including her business license renewal, which she knew would only accrue more debt. With the bleak picture in sight, Pallay made the difficult decision to close down her business entirely and is still facing eviction proceedings for back rent owed, though she was unable to occupy the space for months due to Murphy’s Executive Orders.

Her attorneys said had the Disaster Control Act been implemented as stated in Murphy’s Executive Orders, which mandated compensation boards are established in every county where businesses and individuals could petition for “future reasonable compensation,” in return for Murphy’s control over their properties, it could have helped to cushion Pallay’s business. “Why are people like Darlene Pallay personally paying this price and having their businesses destroyed?” Ferguson asked. “Rescue New Jersey is dedicated to helping restore the lives of people like Mrs. Pallay to a normalcy and safeguarding all their Constitutionally protected rights,” said Donald Dinsmore, Esq., Rescue New Jersey’s chairman. Court briefs show Pallay acted in her business as “a law-abiding, taxpaying citizen of this State” and was a vital part of her region, receiving Congressional recognition for “COVID-related activities that benefitted her community.”

She has recently also been appointed as a volunteer to the Franklin Borough Recreation Committee. For more information about Rescue New Jersey and this case, go to: www.rescuenewjersey.org

Judge Transfers Case Against Gov. Phil Murphy to the Appellate Division

Jennifer Jean Miller
Email: jenniferjeanmiller@gmail.com | Tel: 862-273-5379

Court Transfers Case Against Governor to Appellate Division

(Morris Plains, NJ) A Sussex County business owner’s case against Gov. Phil Murphy for his violations of the Disaster Control Act advanced on Friday, after a judge in the Superior Court Morris/Sussex Vicinage granted its transfer to New Jersey’s Appellate Division.

Judge Stuart A. Minkowitz granted in part the Motion for Reconsideration that attorneys filed on Oct. 2 on behalf of Darlene Pallay who owns JWC Fitness LLC., a business in Sussex County’s Franklin Borough, which does business as CKO Kickboxing Franklin. Minkowitz also vacated his previous order from Sept. 30, in which he dismissed the case from the Morris County Law Division, justifying it could only be refiled as a new complaint within the Appellate Division of the Superior Court.

Attorneys for Murphy with the Attorney General’s Office Assistant Attorney General Kevin R. Jesperson and Deputy Attorney General Amy E. Stevens, filed a motion on Oct. 15 opposing Pallay’s Motion for Reconsideration filed by her attorneys Robert W. Ferguson, Esq., of the law firm of Stern, Kilcullen and Rufolo, LLC of Florham Park and Catherine M. Brown, Esq., of Denville.

Minkowitz based his decision, according to the order, on Court Rule 1:13-4, as well as the case Neptune v. State, Dept. of Envir., that when a case ought to be in the Appellate Division initially, it should be transferred for reason, not dismissed.

Ferguson and Brown filed the initial complaint against Murphy for Pallay on Sept. 23, facilitated by the newly formed, not-for-profit and non-partisan advocacy group, Rescue New Jersey. The suit seeks a declaratory judgment against Murphy, requesting Murphy to establish Emergency Compensation Boards as part of the Disaster Control Act, something he has failed to do.

“We are pleased by the court’s ruling and look forward to vindicating our client’s rights in the Appellate Division,” Ferguson said.

“Rescue New Jersey is pleased with the Judge’s decision and looks forward to putting forth a brief to the Appellate Court, where Mrs. Pallay can hopefully get the justice she so desperately needs and deserves,” said Rescue New Jersey’s Chairman, Donald Dinsmore.

“I am very pleased and hopeful at this latest development and I am remaining hopeful that we will be victorious at each step to help my business, as well as all businesses in New Jersey,” Pallay said.

When Murphy invoked the Act in March, ordering businesses like Pallay’s that he deemed were “nonessential” to close, as required by the Act, Murphy was mandated to establish Emergency Compensation Boards in each of New Jersey’s 21 counties, during the prolonged COVID-19 state of emergency – a state of emergency Murphy recently extended for the eighth time.

According to the Act, individuals or businesses are entitled to petition their respective county Compensation Board for reasonable compensation, in exchange for the Governor taking, using or controlling their property, even temporarily, during the state of emergency. In a state of emergency, Ferguson said the statute gives the Governor one power with respect to private property, and that he can only do so subject to compensation.

Pallay’s business has struggled under the strict restrictions Murphy has imposed. While she has family who live in Long Island and North Carolina where fitness businesses have been permitted to operate at full capacity, Murphy has only allowed businesses like Pallay’s to reopen with an indoor maximum state occupancy level of 25 percent. With Pallay’s classes high-intensity, interval training sessions, her class size is capped at 10 students per class, with 200 square feet required between each student.

Prior to the shutdown, Pallay’s classes could fill with up to approximately 30 students. Under Murphy’s edicts, she said she could not fulfill the CKO franchise business model, which offered unlimited classes to all of her members. Additionally, her membership thinned from more than 200 loyal members to 20.

At her most recent classes, Pallay would often average between five to eight students per class. She unfortunately had no choice but to close her doors and hold her final class on Oct. 30.

A reply brief and affidavit submitted to Minkowitz on Oct. 22 from Ferguson and Brown, detailed Pallay’s plight, calling her a “law-abiding, taxpaying citizen of this State,” who helped to support her family over the last decade with her business, including her three young children.

“She complied fully with the Governor’s Executive Orders, nothwithstanding the personal economic cost to her and her family,” the brief read. “She won Congressional recognition for COVID-related activities that benefitted her community.”

“Mrs. Pallay’s circumstances are parlous, dynamic and worsening,” the brief further stated, emphasizing in addition to facing an eviction proceeding from her commercial landlord, “she has creditors and she has expenses she cannot afford to pay.”

For more information about Rescue New Jersey, go to: www.rescuenewjersey.org

Governor Phil Murphy Attorneys Challenge Sussex County Business Owner's Lawsuit

FOR IMMEDIATE RELEASE

CONTACT: Jennifer Miller

Attorneys for Governor Phil Murphy Challenge Sussex County Business Owner’s Lawsuit Filed Against Governor (Morris Plains, NJ)

Attorneys representing Gov. Phil Murphy have asked a Morris County Law Division Judge on Thursday to deny a Motion for Reconsideration to reinstate a court complaint filed against the Governor. Assistant Attorney General Kevin R. Jesperson and Deputy Attorney General Amy E. Stevens representing Murphy with New Jersey’s Attorney General’s Office, filed a pleading to request that Assignment Judge Stuart A. Minkowitz of the Superior Court, Law Division of New Jersey’s Morris/Sussex Vicinage, deny a Motion for Reconsideration filed on Oct. 2 by attorneys for the plaintiff, JWC Fitness, LLC., a kickboxing studio located in Sussex County’s Franklin Borough.

Attorneys for the business owner Robert W. Ferguson, Esq., of the law firm of Stern, Kilcullen and Rufolo, LLC of Florham Park and Catherine M. Brown, Esq., of Denville, filed the Motion for Reconsideration after Minkowitz ordered on Sept. 30 – without prior notice or hearing - for the case’s dismissal from the Law Division, justifying it could only be refiled as a new complaint within the Appellate Division of the Superior Court. Ferguson and Brown filed the Motion for Reconsideration to reinstate the case, arguing that the Judge should have heard from the parties before acting and, in any event, should have followed Court Rule 1: 13-4, that when a case ought to be in the Appellate Division initially, it should be transferred for reason, not dismissed.

“The court and the parties are currently debating whether the plaintiff’s case should be heard initially in the Law Division, where most cases start, or in the Appellate Division,” said Ferguson. “The case was filed in the Law Division. The Law Division Judge thought it should be heard in the Appellate Division instead. He decided this on his own and without any prior notice to or input from the parties; and dismissed the complaint.

A reconsideration motion is a procedure allowed by the Court Rules.” Ferguson and Brown filed the lawsuit on Sept. 23 for business owner Darlene Pallay, who owns JWC Fitness, which does business as CKO Kickboxing Franklin, challenging Murphy’s Executive Orders, that have forced the shutdown of New Jersey businesses as a result of the COVID-19 pandemic since March. Pallay’s Sept. 23 filing asked for a declaratory judgment against Murphy, that he failed to comply with the compensation requirements of the Disaster Control Act when he ordered non-essential businesses to close; and that he, as required by the Act, must establish Emergency Compensation Boards in each of New Jersey’s 21 counties during the prolonged COVID-19 state of emergency. Per the Act, individuals or businesses are entitled to petition their respective county Compensation Board for reasonable compensation, in exchange for the Governor taking, using or controlling their property, even temporarily, during the state of emergency.

In a state of emergency, Ferguson said the statute gives the Governor one power with respect to private property, and that he can only do so subject to compensation. Pallay, who owns and operates the Franklin franchise, said since the forced shutdown on her business on March 16, she was first unable to hold any classes; and then when she could hold them beginning in June, could only do so outdoors with special provisions.

When indoor classes were finally allowed at 25 percent capacity on Sept. 1, it has remained difficult for Pallay to keep her doors open and to make her monthly commercial rent payments. She is a business owner who has received awards for her volunteerism within the community, including one from Congressman Josh Gottheimer, D-5th Dist., as one of his “Fifth District Coronavirus Hometown Heroes,” for offering no-cost online fitness classes to the community and schools after her business was shut down. Prior to the shutdown, Pallay had over 200 active members, who could take an unlimited number of classes each month at her studio, an offer she is no longer able to extend, because of the shutdown orders.

The lawsuit against the Governor was facilitated by Rescue New Jersey, a non-partisan, educational and advocacy group, concerned with good government; and taking selective action to assist those most harmed by gross government overreach. For more information about Rescue New Jersey, go to: www.rescuenewjersey.org.